Simpson v Chief Constable, Strathclyde Police & Anor

There is no prescribed method for calculating a deposit order under rule 20. The amount must be reasonable in all the circumstances and is appealable only where it gives rise to an error of law. The assessment must consider the claimant’s financial resources together with the context in which the order is made, including the prior finding that the claim has little reasonable prospect of success and the risks of continuing litigation. A student loan may be treated as an available resource where it is not ring-fenced for a particular purpose. Financial difficulty alone does not make a deposit order unlawful.

The claimant appealed against an Employment Tribunal order requiring her to pay a deposit of £380 as a condition of continuing discrimination and whistleblowing claims. The Tribunal had previously found that the claims had little reasonable prospect of success and had decided that a deposit should be required, but deferred quantification pending information about her ability to pay.

The appeal concerned only the amount of the deposit. The central issues were whether the Tribunal had considered irrelevant matters, whether it could take account of the claimant’s student loan and possible adjustment of her expenditure, and whether adequate reasons had been given.

1. Appeal dismissed. The order requiring payment of a £380 deposit was upheld.
2. Rule 20 imposed no particular calculation method. The only requirement was that the amount be reasonable in all the circumstances. The Employment Judge was entitled to use the prior finding that the claims had little reasonable prospect of success as the starting point and to assess the deposit in that context. It would have been wrong to consider the claimant’s finances in isolation.
3. The risk of an expenses or preparation-time order was an inherent part of the deposit procedure. It was therefore permissible for the parties to make submissions about the likely extent of that risk. The purpose of a deposit order was to give fair notice of the risks of continuing with a weak claim and to encourage careful consideration before proceeding, consistently with the overriding objective in rule 3.
4. The claimant’s student loan was properly treated as an available resource. It was money available to her and was not ring-fenced for essential living costs. In any event, it was not the only resource from which the deposit could be paid.
5. The Employment Judge’s reference to returning to live with her parents was an example of how income and expenditure might be rebalanced, not a direction that she should move home. Articles 8 and 14 of the Convention were therefore not engaged. The reference to financial pain merely recognised that payment might be difficult; difficulty alone did not make the order unreasonable.
6. The earlier decision that rule 20 applied was not under appeal. Rule 47 did not impose a requirement to give the reasons for the earlier finding that the claims had little reasonable prospect of success. No error of law or perversity was established.

The deposit was ordered to be paid to the Employment Tribunal at Glasgow within 21 days of 20 January 2012.

• Employment Appeal Tribunal: Appeal against the amount of the deposit order dismissed. The order of £380 was upheld.
• Employment Tribunal: An order registered on 23 February 2011 required payment of a £380 deposit. An earlier order dated 4 November 2010 had found in principle that a deposit should be required and deferred the amount pending information about ability to pay.